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Anania v. Riverfront Partners, LLC

Court of Appeals of Nebraska

August 20, 2013

PHIL A. ANANIA ET AL., APPELLANTS,
v.
RIVERFRONT PARTNERS, LLC., A NEBRASKA LIMITED LIABILITY COMPANY, APPELLEE.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Douglas County: James T. Gleason, Judge.

Allan A. Armbruster, Jr., of Armbruster Law Office, for appellants.

Richard P. Jeffries, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for appellee.

Pirtle and Riedmann, Judges, and Mullen, District Judge, Retired.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Riedmann, Judge.

INTRODUCTION

This case involves a contractual dispute between Phil A. Anania and other purchasers (Purchasers) and Riverfront Partners, LLC (Riverfront). The Purchasers argue that the trial court erred in construing one of the provisions of the purchase agreement entered into between the parties, in finding another provision ambiguous, and in relying on extrinsic evidence to interpret that ambiguous provision. We agree with the trial court in all respects. Accordingly, we affirm the trial court's order.

FACTUAL BACKGROUND

The parties stipulated to the following facts: Riverfront develops and sells tower and townhouse condominium units located on Lot 1, Riverfront Place, in Douglas County, Nebraska. Riverfront purchased Lot 1 from the city of Omaha in May 2005. Because the city of Omaha owned Lot 1, Douglas County did not add the property to its assessment roll of taxable real property until Riverfront purchased it. Douglas County first issued Riverfront a real estate tax bill in December 2005.

In October 2006, Riverfront subdivided Lot 1 into tower and townhome units and recorded the property deeds. That same month, buyers began to close on the units and occupy them. In December, Douglas County issued separate 2006 real estate tax bills to the owners of each tower and townhome unit. Douglas County issued separate real estate tax bills for each unit in all subsequent years.

Each year, Douglas County levies real estate property taxes on or before October 15 and they become due on December 31. Taxpayers may pay the taxes in two installments the following year, however, before they become delinquent. In 2005, Riverfront was taxed $12, 365 for the entirety of Lot 1. The real estate tax for 2005 was first payable on December 31, 2005, and it became delinquent in 2006. Riverfront paid the 2005 real estate tax in installments in April and July of 2006. At all times, Riverfront paid real estate taxes in two equal payments in the year they would have otherwise become delinquent.

Between October 2006 and March 2007, Riverfront conveyed units to each of the Purchasers pursuant to the terms of a purchase agreement for Riverfront Place condominiums (hereinafter Purchase Agreement). Paragraph 10(f) of each Purchase Agreement provides:

(f) Seller shall pay its prorate [sic] share of all real estate taxes which become delinquent if not paid in the year of Closing and all installments of special assessments, if any, payable with respect to the Parcel for all calendar years prior to the calendar year in which the Closing occurs, and such taxes shall not be prorated. With respect to real estate taxes for the calendar year in which the Closing occurs:
(i) If a separate real estate tax bill with respect to the Unit Ownership will not be issued for the calendar year in which the Closing occurs: Purchaser's share of real estate taxes which become delinquent if not paid in the year of Closing shall be the product of (a) the real estate taxes which become delinquent if not paid in the year of Closing for the Tract, multiplied by (b) Purchaser's percentage interest in the Common Elements, which product shall thereupon be multiplied by (c) a fraction the denominator of which is the number of days in the calendar year in which the Closing occurs and the numerator of which is the number of days from and after the Closing Date to and including December 31, of the calendar year in which the Closing occurs.
(ii) If a separate real estate tax bill for the Unit Ownership will be issued for the year in which the Closing occurs, but is not yet available at Closing, the parties shall prorate the real estate taxes as of the Closing Date based on Seller's good faith estimate of the total taxes payable with respect to the Unit Ownership in the year in which Closing occurs. After the County's issuance of a separate tax bill for taxes payable in the year in which Closing occurs for the Unit Ownership, and upon request by either party hereto, the parties shall cooperate in the reconciliation and payment of the amount of any difference between the tax proration that was estimated at Closing and the proration of such taxes based on the final separate tax bill. This reconciliation obligation shall survive closing. Purchaser hereby waives the right of any protest of real estate assessed values less than the assessed value at the time of sale as defined by the TIF (Tax Incremental Financing) bonds, and this waiver of the right to protest assessed value less than the value at the time of sale shall survive the Closing.

Paragraph 10(g) of the Purchase Agreement provides: "Except as specifically provided in this Agreement to the contrary, all prorations at Closing shall be final."

At the closing of each of the Purchasers' condominium unit, Riverfront's escrow agent adjusted the final settlement based on whether Riverfront had paid any of the taxes that would otherwise have become delinquent if not paid in the year of closing. If Riverfront had not paid any of the real estate taxes coming delinquent in the year of the closing before the closing occurred, it gave the purchaser a credit in the amount of its pro rata share. The purchaser was then required to pay the real estate taxes due for the purchaser's property on or before the date of delinquency. If Riverfront ...


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